Payment made in respect of FULL and FINAL settlement

[meagain]

So, onto page 4, can we have a potted summary?

 

Part-payment as F&F not binding apparently?

Is there enough here to also demonstrate criminality?

[rbrears]

If I might just interupt this academic discussion I think you will find that the situation is probably a lot more simple than has been stated.

 

If a lender accepts a lesser amount in full and final settlement that constitutes an amendment to the existing contract. It is fully binding on the lender and the debt is satisfied by the payment. It makes no difference if a DCA is involved. The DCA is just standing in the shoes of the original lender, having had the original contract (and the rights that go with it) transferred to them.

 

The credit file should show the debt as paid off. If it doesnt write to the credit file agency and provide proof of the payment of the debt and request that their file is amended.

[Glenn UK]

If I might just interupt this academic discussion I think you will find that the situation is probably a lot more simple than has been stated.

 

If a lender accepts a lesser amount in full and final settlement that constitutes an amendment to the existing contract. It is fully binding on the lender and the debt is satisfied by the payment.

 

The credit file should show the debt as paid off. If it doesnt write to the credit file agency and provide proof of the payment of the debt and request that their file is amended.

 

FRom earlier discussions this does not necessarily appear to be biding unless certain coditions are met. Of which im no expert, i base my comments on those of zootscoot and others who i know have some relevant interest.

 

If you have something legal to offer it would be useful to know?

 

HTH

 

Glenn

[Stopthethieves]

I have done a few FULL and FINAL settlements and have had my files updated so they now show 0 owing. I have all the paperwork for them. I consider them binding since they are getting a large amount in one go as opposed to years of very small amounts.

 

Anyway, not sure of the legalities but I doubt they will be reopened due to the fact I will want my money back plus HEAVY bank charges plus interest on the charges plus interest on the money they owe!!!!

 

Let sleeping dogs lie but then maybe it might be worth looking at........

 

 

Regards

[Glenn UK]

STT

 

I dont know if you have read the full thread but there is a legal argument against a full and final argument being just that.

 

It may be that it cannot be reopened but its not as simple as it appears.

 

GLenn

[rbrears]

Hi Glenn,

 

The issue of part payment and consideration has been settled law since 1911, although I may not have fully detailed the position in my earlier post.

 

Previous posters have got themselves a bit bogged down in the "consideration" issue, although the leading case in this area has been mentioned, but not the right element of the decision. To clarify, it is a cardinal rule of contract law that consideration must pass from the promisee - it is not necessary for both parties to provide consideration.

 

The issue of consideration in circumstances of part payment to satisfy a debt always caused difficulties because as has been correctly mentioned there is in fact no new consideration passing from the debtor who is obliged under the contract to pay the money anyway.

 

The issue arose first in Pinnels Case in 1602 and it was held there that part payment could not provide consideration.

 

The matter then came back again in Finch v Sutton in 1804 where Lord Ellenborough felt that Pinnels Case still applied in strict terms. However this was before the proper development of the law relating to equity but nonetheless he displayed the instinct that it was not equitable to allow a creditor to agree full and final settlement for a lesser amount and then sue for the balance. He basically recognised that this was unfair. He actually suggested that the consideration issue could be settled (in this case there were more than one creditor who all agreed as part of a composition by the debtor with his creditors) as each creditor had agreed to forgo part of his debt on the basis that each other creditor had also similarly agreed. However this was unsustainable because there was no consideration passing from the debtor - Pinnels Case still applied and he had suggested a manner of circumventing that case but it did not stand up to scrutiny.

 

The leading case is Hirachand Punamchand v Temple and in fact this took the matter outside the usual rules of consideration entirely. Here it was decided that it would essentially be unfair for the creditor to agree to accept a lesser amount in full and final settlement and then sue for the balance - so what to do? It was decided therefore that cases such as these were in a class of their own outside of the usual rules relating to consideration in contracts. The rationale proposed was that it would be a fraud to accept the lesser amount and then to sue for the balance. And that has been the position ever since.

 

The view has also been proposed from time to time, and rightly in my opinion, that the issue of part payment really rests in the area of freedom of contract. It is a basic tennet of contract law that parties are able to agree what they will - parties have freedom of contract (except for certain limitations in respect of illegal contracts etc, and the more modern protections in consumer law, etc.). As a result the acceptance of part payment is much better explained as a mutually agreed variation to the existing contract. The parties are entirely within their rights to change the terms of their bargain as they wish and it must be correct that where part payment is accepted the parties have agreed to change the terms of the existing contract and the terms are therefore suitably amended and the agreement is binding - and, the debt is thereby settled by the payment.

 

Hope this helps.

[Glenn UK]

rbrears

 

Id say that is very interesting and useful.

 

I guess you have read through the whole lot and so will realise the issue of reclaiming charges has often been linked to former settlements.

 

It has in my case and has made me reticent about proceeding against egg particulalry.

 

I will take the time to have a read of the cases you outline if i can find them online, not that i dont believe you, i just like to try to understand whats what as it were.

 

just one question if i may. When i settled my debts, my creditors mostly sent me a letter saying F&F. But Abbey never did, however, when i wrote to them i set out that the offer was F&F.

 

The settltement was conditional to all of my creditors at the time accepting the part settlement.

 

Does it have any bearing that abbey never acknowledged the settlement as F&F do you know?

 

Glenn

[rbrears]

Not really - as long as the money was paid on that basis then the acceptance of it should be a sufficient acceptance of your terms. There are some arguments against this but I really wouldn't worry about it, particularly when dealing with a high street lender. If there is any doubt as these are consumer issues the presumption is usually that any confusion will be resolved in your favour as the consumer.

 

Best of luck

[Glenn UK]

Thanks

 

I did include a phrase something like, cashng this cheque signifies your accetpance of the sum as full and final settlement.

 

Cheers

 

Glenn

 

PS Im sure ill find out what the situation is with Abbey, i issued my n1 today.

[Stopthethieves]

Interesting read....

 

I was kind of thinking along those lines but you have the research to back up my thoughts.

 

Anyway, those debts to me are dead....I'm not going anywhere near them even those in reality they OWE me money on a few of them.

 

Regards

[zootscoot]

The leading case is Hirachand Punamchand v Temple and in fact this took the matter outside the usual rules of consideration entirely. Here it was decided that it would essentially be unfair for the creditor to agree to accept a lesser amount in full and final settlement and then sue for the balance - so what to do? It was decided therefore that cases such as these were in a class of their own outside of the usual rules relating to consideration in contracts. The rationale proposed was that it would be a fraud to accept the lesser amount and then to sue for the balance. And that has been the position ever since.

 

 

With respect, I would say this is perhaps a bit of an exageration, hardly a leading case and certainly did not take the matter outside the rules of consideration. It merely provided a limited exception that where a part payment was paid by a third party this would count as sufficient to satisfy the whole debt.

 

If the law was changed in 1911 how do you account for the decision in D&C Builders v Rees?

[Stopthethieves]

Zoot

 

Where you say third party....do you mean like someone paying a part settlement on my behalf?

 

Regards

[zootscoot]

Yes,

 

If someone pays your debt on your behalf this will make the F & F settlement binding.

 

Hope this helps

 

Zoot

[Stopthethieves]

Yep.

 

My settlements were made by family members with their own personal cheques and the offers were made stating in writing that this was the source of the money.

 

Regards

[Glenn UK]

Zoot

 

does this mean were back to square one then?

 

Glenn

[zootscoot]

Fantastic.... go claim those charges!!!!

 

Best of luck

 

Zoot

[Stopthethieves]

I just realised I was posting on a thread I started.......

 

 

Confused...do you mean I am within my rights to seek the return of my charges?

 

Seems a bit dodgy.....

 

Let me know how that is possible...

 

Regards

[zootscoot]

does this mean were back to square one then?

 

 

Glenn if you had a composite agreement with all creditors (including Abbey) then yours should be binding also.

 

There may well also exist something in the Banking Codes or like about F & F settlements as you don't often hear about the banks reopening debts.

 

Hope this helps

 

Zoot

[zootscoot]

I just realised I was posting on a thread I started.......

 

 

A couple of threads were merged and we all lost track of what was going on for a bit I think.

 

do you mean I am within my rights to seek the return of my charges?

 

 

 

If they have levied unlawful charges to your account it may well be that you in fact paid those charges. Banks generally make their charges a priority debt. ie your payments will go to discharge their fees before repaying any of the actual debt. If you still have the T & Cs have a look. If so the chances are what you have paid in full and final settlement or any monthly payment will have been their charges. The amount they let you off is likely to be the actual amount borrowed. They were not forced in to accepting the settlement and its likely that if the charges were not levied you may have been in a position to pay off the outstanding debt or would have offered a lower amount in F & F settlement.

 

Hope this makes sense!

 

Zoot

[Stopthethieves]

Been a busy thread......

 

 

I understand BUT.....

 

if I do proceed along these lines then I want to be sure that they ain't going to spring up some law etc that forbids from doing it!!!

 

Regards

[zootscoot]

Its worth doing a SAR to find out what the charges were. They may try to argue that they will not refund the charges because the debt was settled and as such you did not actually pay them. But if they do make their charges a priority debt you've got some pretty strong ammunition to throw back.

 

All the best whatever you decide.

 

Zoot

[rbrears]

Oh dear I thought this would happen while I was writing my second post

 

Zoot, isn’t D&C Builders v Rees is an estoppel case? The reason that the part payment was not accepted was because of the behaviour of the wife who made the offer to settle with part payment. She said accept £300 ...or you get nothing....and because her conduct was less than equitable she was unable to rely on an estoppel to defend the claim for the balance of the money.

 

Being a lecturer in contract law (lets trade credentials ) you will know that caution should be exercised in quoting cases involving Denning LJ!! and of course estoppel doesn’t quite do it for settlement by lesser payments because the debtor suffers no detriment at all. In the world of legal practice no-one ever mentions him any more. I can’t remember the last time any of his cases actually came up in any of the everyday matters (like those on these forums) that I have dealt with.

 

The “leading” case on the fraud point as a means to avoid the insufficiency of consideration is Hirachand as I stated. The effect of the exception, as you describe it, is indeed to take those cases outside the usual rules of sufficiency of consideration. These cases are a separate head related to compositions with creditors and I have relied on them successfully many times. I only mention it because it might help others and as far as I know it has not been overruled.

 

You have defined the case as one where the ratio is about payments by third parties constituting sufficient consideration. That's true but the case also decided that it would be a fraud on the party who tendered the part payment to thereafter sue for the balance. That is the way the court resolved it. It matters not that the payment is made by a third party or the original debtor – it is the unfairness that was addressed by the decision that a fraud would occur. That is a general principle that to my knowledge still applies to full and final settlements by payments of less than the contractual amount.

 

And also with respect to you too Zoot your previous posts have stated that part payment is not legally binding unless it is effected by deed; that if a debt is in default the original contract doesn’t apply; and that a DCA or even the original lender could chase a debtor after accepting full and final settlement for a lesser sum and I just worry that as far as I can see these comments are not correct.

 

Academic or technical debate on these forums is probably a bit pointless and we should probably resist the temptation otherwise we’ll just be quoting Treitel at each other! – most people won’t want to read it. Certainly not trying to be argumentative because your posts are always helpful and informative

[PhantomReclaimer]

I have done a few FULL and FINAL settlements and have had my files updated so they now show 0 owing. I have all the paperwork for them. I consider them binding since they are getting a large amount in one go as opposed to years of very small amounts.

 

This is entirely proper and creates a binding contract which the bank cannot go back on and demand the balance. The alteration of the payment terms constitutes sufficient valuable consideration.

 

P.

[zootscoot]

Congratulations Phantom that is good news!

 

Rbrears

 

 

D& C builders was indeed an estoppel case, however, estoppel was denied and therefore the outcome was that the common law set out in Pinnel's case and Foakes v Beer was applied and this was after the year you claim that the common law no longer applies. The fact that it was decided by Lord Denning MR is neither here nor there. He invented the promissory estoppel doctrine not the common law (even he wasn't around in 1602!) true many of his judgments are ignored or no longer considered good law as he stretched the rules quite considerably. But D&C Builders was not one of them.

 

As far as I can see I have advised people that there is a small risk that their debts could be reopened, which I believe is correct. In my view its important that people are aware of this risk, no matter how small, rather than stating categorically that their debts will never be re-opened.

 

Zoot

[coldcarpet]

most companies look for 80% of balance as a full+final and shows a amount o.s but also shows the company are not chasing for remainder, if its less than that its shows account settled with a p flag indicating amount o.s but a agreement was made between both parties and again remainder not been chased for hope this helps